Petitioner pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction, entered upon a jury verdict on October 30, 1984 in the New York State Supreme Court, New York County (Cropper, J.), of two counts of burglary in the first degree, see N.Y. Penal Law §§ 140.30(2), 140.30(3) (McKinney 1988), and one count of assault in the second degree, see N.Y. Penal Law § 120.05 (McKinney 1975). Petitioner was sentenced on December 3, 1984 as a predicate felon to concurrent prison terms of 11 to 22 years on the burglary counts and 3-1/2 to 7 years on the assault count. On June 11, 1987 the Appellate Division, First Department, affirmed the judgment of conviction without opinion, People v. Alvarez, 131 A.D.2d 980, 516 N.Y.S.2d 567, and on August 21, 1987 the New York State Court of Appeals denied leave to appeal, People v. Alvarez, 70 N.Y.2d 708, 519 N.Y.S.2d 1043.

Viewing the facts in the light most favorable to the state (see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 102 L. Ed. 2d 334, 109 S. Ct. 316 (1988); Garcia v. Warden, 795 F.2d 5, 6 (2d Cir. 1986)), the evidence at trial established that during the year and a half prior to March 1984, Linda and Virgil Williams lived in an apartment at 381 East 8th Street and paid "rent" to Mrs. Lee Lewis, believing that she was the owner of the building. In late February 1984, the New York City Department of Housing Preservation and Development ("HPD") instructed Mr. and Mrs. Williams not to pay further rent because the building was owned by the city and was officially vacant. On March 11 and 12, 1984, petitioner, who lived with Lewis in an adjoining apartment, came to the Williamses' apartment demanding the "rent." After Mr. and Mrs. Williams explained what they had been told, petitioner told them they would have to leave if they did not pay him. On March 13, 1984, sometime after 11:30 a.m. while Mrs. Williams was not at home, petitioner returned to the apartment, pounded on the door and told Mr. Williams he had two hours to get out or be thrown out. At about 5:00 p.m., after Mrs. Williams had returned to the apartment, petitioner again pounded on the door and demanded payment. After the Williamses refused to open the door, petitioner broke into the Williamses' apartment through a side door that joined their kitchen to petitioner's apartment. Petitioner shoved aside the refrigerator, which had been blocking that door, and brandished a foot-long silver crowbar. He pushed the 72-year-old Mr. Williams to the floor and threw a chair at him. He then attacked Mrs. Williams with the crowbar, repeatedly striking her on the head and upper body, and continued to demand the money. After petitioner left Mrs. Williams telephoned the police and her minister. The police later that day recovered the blood-stained crowbar from the floor of petitioner's apartment.

At petitioner's trial Mr. and Mrs. Williams each testified as to his various demands for payment of "rent," his forced entry into their apartment and his assault on Mrs. Williams. The police officer who arrested petitioner testified regarding the Williamses' physical condition upon his arrival at their apartment, the signs of forced entry from the adjoining apartment, his search of that apartment and his discovery there of the crowbar. Mrs. Williams' minister testified that, after he arrived on the scene and confronted petitioner in his apartment, he also saw the crowbar there.

The petition herein presents essentially the same four claims that were presented to the Appellate Division. They are: (1) Petitioner's right to confrontation was violated by the trial court's refusal either to sign a subpoena for the Family Court records or to inspect them in camera to determine whether they were material to Mrs. Williams' credibility at trial; (2) Petitioner's rights to due process of law and a fair trial were violated by the trial court's jury instructions on the element of intent for the crime of burglary; (3) Petitioner's rights to due process of law and a fair trial were also violated by the trial court's failure to instruct the jury on a "mistake of fact" defense to burglary; (4) Petitioner's sentence was "harsh and excessive."
*fn2"

Under New York law, a person is guilty of burglary in the first degree when, among other things, "he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein. . . ." N.Y. Penal Law § 140.30 (McKinney 1988).
*fn3"
Although intent may be inferred from the circumstances of the case, see People v. Mackey, 49 N.Y.2d 274, 279-80, 425 N.Y.S.2d 288, 291, 401 N.E.2d 398 (1980), and the prosecution need not establish the particular crime the intruder intended to commit, see id., 425 N.Y.S.2d at 290-91, the prosecution must prove that such intent existed at the time the intruder unlawfully entered or remained and not merely after he did so, see People v. Gaines, 74 N.Y.2d 358, 359-60, 363, 547 N.Y.S.2d 620, 621, 622-23, 546 N.E.2d 913 (1989).

In its main charge, the trial court repeatedly tracked the "enters or remains" language of the burglary statute. Thus, the court instructed the jury that

. . . it must be proved that at the time of his unlawful entry or when he was on -- or when he unlawfully remained within the dwelling, the defendant intended to commit a crime within that dwelling.

Tr. 382; see also id. 381, 384, 386. Defense counsel had no exceptions or requests to the court's main charge. Id. 393. After it had begun deliberations, the jury requested that the court provide it with "a definition of each of the three charges" and specifically that it clarify the phrase "intent to commit a crime," stating, "it is unclear to us. Please define what crime is in this case or does the crime not have to be stated?" The court's supplemental instructions on the elements of burglary again tracked the statute's "enters or remains" language. Id. 396, 397, 399. With respect to "intent to commit a crime," the court instructed the jury as follows:

As I stated in my charge, the word "crime" as used in the definition of burglary in the first degree means a felony or a misdemeanor. The People are not required to specify or to prove that a defendant committed any particular felony or misdemeanor. . . . Rather, the People must prove that when the defendant entered unlawfully or remained unlawfully in the dwelling, he acted in such a manner as to permit the inference that he intended to engage in conduct constituting a felony or misdemeanor. From the manner of entry, a defendant's words and conduct while unlawfully entering a premises or while unlawfully remaining in a premises, it may be impossible to establish beyond a reasonable doubt that the defendant intended to commit any crime. In that event, such a defendant must be acquitted.

Now under such circumstances, the People's burden of proof as to the intent element will have been satisfied even though the particular crime that the defendant intended to commit was not proved. Of course, if it is found beyond a reasonable doubt that a defendant in fact committed a crime while unlawfully entering or unlawfully remaining in a dwelling, the People's burden will also have been satisfied.

Id. 398-400. Defense counsel took exception to the last sentence. The court, apparently to preserve a record of the defense counsel's objection, later described that objection as follows: "that [the instruction] did not make clear that the intention to commit a crime needed to be formed and in the mind of the person on entry and during the time they were there and that that crime had to be an intentional crime." Id. 403. The jurors were again recalled, and the court restated its supplemental charge in essentially the same terms, except for the final sentence:

And of course, if it is found beyond a reasonable doubt that a defendant in fact intended to commit a crime and also in fact did commit that particular crime while unlawfully entering or unlawfully remaining in a dwelling, the People's burden will also have been satisfied.

Id. 402 (emphasis added). Defense counsel again excepted to the last sentence of the supplemental charge, arguing that the instructions were not "sufficiently curative" of the indication "that the mere commission of a crime was sufficient to establish intent." Id. 403. The court refused to give any further instructions, stating that its revised charge corrected the matter to which defense counsel had objected. Id.

In order to obtain a writ of habeas corpus in federal court based on an error in the state court's instructions to the jury on a matter of state law, the petitioner must show that the error violated a right guaranteed by federal constitutional law. Cupp v. Naughten, 414 U.S. at 146; Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985); see Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990). The issue is not whether the instruction is "undesirable, erroneous, or even 'universally condemned,'" Cupp v. Naughten, 414 U.S. at 146, "but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147. See Wright v. Smith, 569 F.2d 1188, 1191 (2d Cir. 1978); Colon v. Smith, 723 F. Supp. 1003, 1009 (S.D.N.Y. 1989). Thus, the Supreme Court has stated:

We have long recognized that a "mere error of state law" is not a denial of due process. Gryger v. Burke, 334 U.S. 728, 731, 92 L. Ed. 1683, 68 S. Ct. 1256 (1948). If the contrary were true, then "every erroneous decision by a state court on state law would come [to this Court] as a federal constitutional question." Ibid.

In responding to a jury's request evidencing difficulties in comprehending the elements of an offense, the trial court is obligated to "clear [the difficulties] away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13, 90 L. Ed. 350, 66 S. Ct. 402 (1946). However, no error need be found where a supplemental charge is responsive to the jury's specific request for clarification. United States v. Velez, 652 F.2d 258, 262 (2d Cir. 1981); Grant v. Dalsheim, 535 F. Supp. 1382, 1386-87 (S.D.N.Y. 1982). Even where error is found, reversal is not automatically warranted because the error must be assessed in the context of both the original and supplemental instructions as a whole. United States v. Tillem, 906 F.2d 814, 826 (2d Cir. 1990); United States v. Gengo, 808 F.2d 1, 4 (2d Cir. 1986); Rock v. Coombe, 694 F.2d 908, 915 (2d Cir. 1982), cert. denied, 460 U.S. 1083, 76 L. Ed. 2d 345, 103 S. Ct. 1773 (1983); United States v. Velez, 652 F.2d at 261.

Petitioner repeats here the two arguments that he raised before the Appellate Division. First he argues that the supplemental charge erroneously permitted the jury to base its finding of his "intent to commit a crime" merely on proof beyond a reasonable doubt that he committed a crime while inside the apartment. Even if the last sentence of the court's first supplemental instruction could be seen by itself to have permitted the jury to base the element of intent for burglary merely on the commission of a crime inside the dwelling, when the court restated its supplemental instruction, revising that final sentence by adding "intended to commit a crime," the court cured any possibility that the jury might have found "intent to commit a crime" merely on the basis of defendant's having committed a crime while inside the apartment. Moreover, a review of the allegedly ailing instruction in the context of all the instructions as a whole further removes the question of any possibility of constitutional error. The trial court in its original charge, after a careful and proper explanation of intent generally, explained that "it must be proved that at the time of his unlawful entry or . . . when he unlawfully remained within the dwelling, the defendant intended to commit a crime within that dwelling" and that the proof must show that the defendant "was in the premises for the purpose of committing the crime," and it emphasized specifically that "the crime of burglary is separate and distinct from any crime which a person does commit within the dwelling." Tr. 382, 383; see id. 377-380. Accordingly, petitioner's claim with respect to the first supplemental instruction must be rejected.

Second, petitioner argues that the trial charge erroneously permitted the jury to convict him of burglary even if he did not form "the intent to commit a crime" until after he had entered the apartment.
*fn4"
However, even if the instructions were erroneous for this reason as a matter of New York law,
*fn5"
petitioner has made no showing that the alleged error violated any right guaranteed by federal constitutional law. Indeed, it is difficult to conceptualize what constitutional problem would be presented by being found guilty of burglary for having formed an intent to commit a crime after unlawfully entering but before unlawfully remaining in a dwelling, rather than before unlawfully entering. In sum, Ground (2) of the petition should also be rejected.

Petitioner's claim that his sentence was excessive must be denied because it is well established that no constitutional issue is presented for habeas corpus relief where a sentence imposed falls within the range prescribed by state statutory law. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); Hamilton v. Hood, 806 F. Supp. 429, 434 (S.D.N.Y. 1992); Chisholm v. Henderson, 736 F. Supp. 444, 449 (E.D.N.Y. 1990), aff'd, 953 F.2d 635 (2d Cir. 1991); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988). As petitioner's sentence fell well within that prescribed by the New York legislature for class B felonies committed by second felony offenders, see N.Y. Penal Law §§ 70.06, 140.30 (McKinney 1975 and 1988), there is no basis for federal habeas relief on this ground.

CONCLUSION

For the above reasons, I respectfully recommend that your Honor deny this petition.

Copies of this Report and Recommendation have been mailed June 3, 1993 to the following:

Mr. Caesar Alvarez

84 A 7534

Fishkill Correctional Facility

Box 307

Beacon, NY 12508

Tyrone Mark Powell, Esq.

Assistant Attorney General

120 Broadway

New York, NY 10271

The parties are hereby directed that if you have any objections to this Report and Recommendation you must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court and send copies to the Honorable Mary Johnson Lowe, to the opposing party and to the undersigned. Failure to file objections within ten (10) days will preclude later appellate review of any order that will be entered by Judge Lowe. See 28 U.S.C. § 636(b)(1); Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure; Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 121 L. Ed. 2d 696, 113 S. Ct. 825 (1992); Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam).

Dated: New York, New York

June 3, 1993

Respectfully submitted,

SHARON E. GRUBIN

United States Magistrate Judge

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.